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Joint Study of the Special Rapporteur on the Promotion of Truth, Justice

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Joint Study of the Special Rapporteur on the Promotion of Truth, Justice Joint study of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence and the Special Adviser to the Secretary-General on the Prevention of Genocide (A/HRC/37/65) Summary of discussions of expert group meetings that contributed to the preparation of the joint study 1. The present is a summary of the discussions of two expert meetings that contributed to the preparation of a joint study, prepared pursuant to Human Rights Council resolution 33/19, on the contribution of transitional justice to the prevention of gross violations and abuses of human rights and serious violations of international humanitarian law, including genocide, war crimes, ethnic cleansing and crimes against humanity (“atrocity crimes 1”), and their recurrence 2. The Joint Study was presented by the Special Rapporteur, Pablo de Greiff, and the Special Adviser, Adama Dieng, at the 37 th regular session of the Human Rights Council, on 5 March 2018. 2. This document presents examples of good practices collected during the two expert group meetings. The meetings were held in New York on19-20 September 2017 and in Geneva on 13-14 November 2017. The meetings examined the contribution of three categories of measures undertaken in transitional justice contexts that are not commonly linked to the prevention of atrocity crimes: constitutional reform; education reform (in particularly history education); and initiatives aimed at establishing effective civilian oversight over security forces. The fourth element considered was the contribution of civil society to the prevention of recurrence and of atrocity crimes. 3. These four categories of measures are linked to the transitional justice pillar of guarantees of non-recurrence. While prosecutions, truth and reparations, measures commonly associated with transitional justice processes, are measures that deal with past events, guarantees of non-recurrence are forward looking and preventive in nature. While this may be the least developed pillar of transitional justice, there is considerable knowledge and expertise on the topic. 3 The aim of the expert group meetings was to collect some of this knowledge and expertise for the purposes of the Joint Study. A. Constitutional Reform 4. In the Joint Study, the Special Rapporteur and Special Adviser note that a constitution with a bill of rights and the proper institutional arrangement for its enforcement can have preventive effects well beyond the general advantages of the rule of law .4 They add that constitutional arrangements can be vehicles for accommodating distinct national concerns while guaranteeing the protection of 1 The term “atrocity crimes” is used to refer genocide, war crimes and crimes against humanity, which are defined in international criminal law, including in articles 5 to 8 of the Rome Statute of the International Criminal Court. Ethnic cleansing, while not established as a distinct crime, includes acts that can amount to one of these crimes, in particular, genocide and crimes against humanity. 2 A/HRC/37/65 3 A/HRC/37/65, para. 16 4 Ibid. para. 31 1 fundamental human rights. Constitutions can recognize the diversity of a State and grant explicit protection to different populations, including cultural, ethnic or religious minority groups. Constitutions can also provide for diversity in the composition of the State administrative bodies, civil service, judiciary and security forces. While no diversity management model is perfect, the Joint Study notes that constitutional arrangements have the potential to create the means to address political tensions.5 5. In the meetings, experts referred to restraining the power of the State through enshrining fundamental rights in constitutions and through regulating the relationship between political institutions. Participants highlighted the importance of an inclusive and participatory constitutional reform process over particular outcomes as a result of that process. The importance of inclusive citizenship provisions in constitutions 6. Experts referred to constraining the exercise of power through a constitution that guarantees rights, particularly, inclusive citizenship provisions that prevent individuals from being singled out for discriminatory treatment. They highlighted the importance of all societal groups having the right to citizenship, which is usually associated with having a legal identity, birth registration, and access to employment, healthcare, social welfare and to participation in the broadest sense. Participants highlighted the consequences of denying citizenship rights to some population groups based on their identity, referring to the situation of the Rohingya population of Myanmar, who have been resident in Myanmar for generations but are not considered Burmese. As one expert put it, the denial of citizenship leads to the denial of associated rights and the marginalization of the population. Others referred to restrictive legal provisions in some constitutions that prevent women from passing on their citizenship to their children.6 Participants agreed that citizenship equality, when enshrined in constitutions, is a starting point for the prevention of discrimination against vulnerable groups and minorities that can lead to serious human rights violations and atrocities. On institutions and institutionalization 7. As mentioned in the Joint Study, constitutions establish and regulate the relationship between the different branches of government amongst which power is divided. When institutions are accountable to other institutions, power becomes fragmented which, in itself, has some preventive potential. 7 8. Participants considered the role of institution building as a way to prevent atrocities. One expert cautioned against the tendency to create political institutions to decentralize power as a measure of short-term conflict mitigation. Whereas decentralization works in some contexts, it does not work everywhere regardless of other factors; by creating provincial or regional institutions in the heat of the conflict, there is a risk of institutionalizing the conflict as it endorses ethnic, geographic, and sectarian divisions. For example, decentralization has proved a disaster in South 5 A/HRC/37/65, para. 33 6 According to the United Nations High Commissioner for Refugees, 27 States have nationality laws which do not allow women to confer nationality to their children on an equal basis as men. UNHCR 2014, Global 2014-2024 Action Plan to End Statelessness. 7 A/HRC/37/65, para. 29. 2 Sudan. Instead, institution building should be the result of inclusive negotiation and dialogue to attune decentralization with long-term stabilization, and respectful of relevant contextual factors. 9. Overall, experts highlighted the importance of inclusive, transparent and accountable State institutions that deliver equitable services to all populations and respect the rule of law and human rights to reduce the risk of atrocity crimes. Furthermore, national human rights institutions, a strong civil society and a pluralistic media were all identified as contributing to strengthening the rule of law through their activities and reducing risk. Participants pointed at institution building as the biggest challenge, however, and one in which there needs to be more investment. 10. Participants recognized a tension between the importance of investing long- term in the establishment of functioning State institutions following periods of conflict and atrocities and the often short-term nature of funding for such projects. On the importance of a long-term process, one participant referred to the World Bank Study on the Rule of Law, which found that it takes on average 40 years for new institutions to start working effectively. At the same time, donor expectations of project results have gone from ten years to one year. Institution building needs more time and investment than the average four-year donor-funded project. Participants stressed the need to encourage donors to support longer-term projects that allow building and strengthening sustainable institutions. Paying attention to the process 11. The Joint Study underlines the importance of paying as much attention to the process of adopting and articulating constitutions and bills of rights as is given to the outcome. 8 Experts stressed the importance of an inclusive and participatory process that respects the rights of all populations groups, including minorities. This kind of process would be more likely to prevent recurrence, as it would more effectively address root causes of previous violence and on-going grievances that could spark new cycles of violence. Others noted that, if not inclusive, such processes could have negative consequences as they could reaffirm existing divisions within societies that may have contributed to conflict. 12. A bottom line on which participants agreed was that these processes must respect human rights principles in order to promote confidence, ensure the engagement of all sectors of society and public participation. As a good example, one expert referred to the 2006 peace process in Nepal. In the Comprehensive Peace Agreement, signed by the Government and the Communist Party of Nepal (Maoist) on 21 November 2006, both sides reiterated their commitment to respect and protect human rights. 9 Respect for freedom of association, freedom of expression, and social and cultural rights during the peace process framed a constitutional process (leading to the 2007 Interim Constitution) in which
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